It has been a long few weeks for Orleans Parish District Attorney Leon Cannizzaro. Since we last checked in on his problematic leadership, public pressure has focused and intensified, like sunlight through a magnifying glass. On April 26, 2017, a New Orleans non-profit public interest news organization called The Lens published a piece by Charles Maldonado revealing that the DA’s office had been issuing unauthorized “subpoenas” to intimidate potential witnesses into complying with its investigations. This practice—another one added on to a sizable edifice of policies corrosive of the public’s trust—has unleashed a torrent of negative publicity and litigation. Cannizzaro, unshaken and unrepentant for now, may very well see his power and influence wane as a result.
Maldonado’s story picked up on a thread from the high-profile prosecution of Cardell Hayes, the man recently convicted of killing the local professional football star, Will Smith. Maldonado learned that Tiffany Lacroix, an individual the DA’s office wanted to interview, had received a document that
had “SUBPOENA” printed at the top, next to a logo of the Orleans Parish District Attorney’s Office. It ordered her to meet with a prosecutor to discuss the upcoming trial of Cardell Hayes . . . . “A FINE AND IMPRISONMENT MAY BE IMPOSED FOR FAILURE TO OBEY THIS NOTICE,” it declared.
But it wasn’t authorized by a judge. It wasn’t issued by the Clerk of Court, which sends out subpoenas. And Lacroix wouldn’t have gone to jail if she had ignored it. In other words, it was fake.
In an initial response to the report, Chris Bowman, a spokesman for the DA’s office, said “[t]he district attorney does not see any legal issues with respect to this policy.” Later that day, The Advocate reported that Cannizzaro’s First Assistant, Graymond Martin, stated that they would abandon the “subpoenas” and instead send “notices to appear.”
Nonetheless, the controversy struck a deep nerve in the Crescent City. Nobody in Cannizzaro’s camp could give a clear answer about how many of these fake subpoenas it sent to prospective witnesses or how long the office had utilized these profoundly misleading documents. A former Orleans Parish prosecutor and current president of the Metropolitan Crime Commission, Rafael Goyeneche, confirmed that similar documents were used when he worked in the office in the 1980s. Does the fake subpoena’s longevity somehow sanitize its use? Not in local columnist Jarvis DeBerry’s view. He explains that judges instruct jurors that “[i]f a witness will lie about  one thing, then it’s acceptable to dismiss that witness as, well, a liar.” Turning to the DA, DeBerry asked, “Does the same standard apply to our district attorney? When we catch Leon Cannizzarro in a bald-faced lie, can we wave off every other thing he utters as a falsehood?”
The explosive news of Cannizzaro’s fake subpoenas did not subside in the days following its break. Within a few weeks, the DA’s office had been sued by at least three different organizations because of those documents. The MacArthur Justice Center in New Orleans filed a lawsuit based on a 2015 public records request that the DA declined to fulfill on the grounds that the criminal district court clerk was the custodian of the subpoenas the organization sought. But, the fake subpoenas were never signed by a judge or issued by the clerk. As MacArthur co-director Katie Schwartzmann explained, “The district attorney’s staff misled us about where to find subpoenas, at best.” Within days, the ACLU of Louisiana filed a lawsuit seeking the names and bar association numbers of any prosecutors in the office who had used fake subpoenas. The ACLU’s suit turns on Cannizzaro’s refusal to comply with a public records request seeking information about which lawyers utilized the documents. The DA’s office responded to the request stating that it did not maintain those records. And, The Lens filed its own lawsuit. The basis for its complaint was—you guessed it—the DA’s claim that it could not fulfill The Lens’s public records request for copies of all fake subpoenas it used since January 2016. According to the DA, it would have to go through thousands of files manually to locate these documents. A lawyer for The Lens stated the obvious: “If a government agency could avoid public access to records ‘by simply placing public records in separate files, it would defeat the purpose that they collect the records and produce them for inspection or copying.’”
Within a week, the controversy spilled over from civil court into criminal court. There, a criminal defendant requested information about whether the DA had used the fake subpoenas to intimidate witnesses. According to a defense motion, “the defendant has a constitutional due process right to discover not only whether these subpoenas were issued, but also to inspect all documentation showing any and all contacts the district attorney’s office has made with witnesses in his case.” Just as promises or agreements that prosecutors make with witnesses in exchange for their testimony must be disclosed to the defense under the Brady doctrine, so too must threats made by the prosecution that may coerce such testimony. (It has been widely reported over the years that Cannizzaro’s office has had quite a tough time comprehending and complying with the Brady rule, a basic doctrine of constitutional criminal law.)
Fake subpoenas have not only generated headaches for Cannizzaro in the courtroom, but they have also led to protests in the streets. On May 16th, nearly 100 citizens gathered on the steps of the Orleans Criminal District Courthouse to call for the District Attorney’s recall. While the demonstration came in on the heels of the current controversy, it was clear that the participants brought a wide range of concerns with how Cannizzaro uses and abuses his power. The leader of a local coalition said that she opposes the DA’s “transfers of juvenile offenders to the adult court system.” At the event, “[s]everal speakers noted Louisiana’s incarceration rate . . . in calling for Cannizzaro to stop jailing crime victims.” Yes, crime victims. Recently, Cannizzaro has come under scrutiny for his practice of jailing some victims of sexual assault and domestic violence on material witness warrants in order to compel their testimony. In early May, the City Council passed a resolution urging the DA to stop this aggressive tactic.
The array of prosecutorial policies and practices that undermine Cannizzaro’s credibility appears to be engendering a backlash. DeBerry’s column points to the double standards that pervade the DA’s worldview:
Isn’t this the same district attorney who brought impersonation of a peace officer charges against an investigator in the Orleans Parish Public Defender’s Office because, he said, she pretended to work for the DA’s office? Cannizzaro eventually dropped the charges, but his office initially declared it an outrage that a public defender would misrepresent herself.
If unethically and falsely threatening witnesses with jail time and lodging unfounded charges against public defenders were not enough to boil the blood, Cannizzaro is appealing a federal district court’s ruling granting John Floyd a new trial. The court’s ruling was based on the fact that the State hid evidence that points to Mr. Floyd’s innocence. James Gill calls the DA’s appeal more proof that Cannizzaro “doesn’t mind being called a hard-ass.”
It has indeed been a long few weeks for Mr. Cannizzaro. But, if it is true that he will reap what he has sowed, longer days await.